This
matter came before the Utah State Tax Commission for oral arguments on whether
or not the Commission should approve the Stipulation submitted by the parties
on XXXXX.The hearing was held on
XXXXX.Alice Shearer, Commissioner, and
Jane Phan, Administrative Law Judge, heard the matter for and on behalf of the
Commission.Present and representing
the Petitioner were XXXXX,and
XXXXX.Present and representing the
Respondent were XXXXX, Assistant Attorney General, and XXXXX and XXXXX of the
Collection Division.

At
the hearing the representative for Respondent explained that after taking a
significant amount of time and effort in the discovery process it was
determined that Respondent's position for basing the personal penalty
assessment against Petitioner was week and that the assessment should be
withdrawn.Respondent's representative
stated that there were basically three reasons for making this
determination.One, after reviewing discovery
and deposing the Petitioner, Respondent did not think it could show the "willfulness"
required in upholding a personal penalty assessment.Second, Respondent determined the assessment would be virtually
uncollectible.Third, some of the assessment
was barred by the applicable statute of limitations.

Respondent's
representative explained that after they had made the determination that their
position was week, expending a significant amount of time and expense,
Petitioner made its settlement offer.To recoup some of the costs expended Respondent had agreed to accept
$$$$$ as settlement.Respondent's
representatives stated that if Petitioner had not made the settlement offer the
entire assessment against Petitioner would have been withdrawn.Respondent explained that it felt keeping
the $$$$$ was justified due to the expenses it had incurred.

At
the hearing Petitioner's representative added that it had made the settlement
offer on behalf of Petitioner because of the costs involved in defending
Petitioner against the assessment.

ORDER

Based
on the information presented at the hearing it appears that the assessment
against Petitioner should have been withdrawn after Respondent determined that
it could not sufficiently support the assessment.The Commission will not accept any funds as a settlement on an
assessment that it cannot support.Approval of the Stipulation dated XXXXX is denied.Respondent is ordered to refund Petitioner's
payment of $$$$$ with interest.Further, Respondent is ordered to withdraw the personal penalty
assessment against Petitioner relating to sales, use and withholding tax for
XXXXX, for the period of XXXXX through XXXXX, the audit periods of XXXXX
through XXXXX and XXXXX through XXXXX.It is so Ordered

DATED
this 4 day of October, 1995.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val
OvesonRoger
O. Tew

ChairmanCommissioner

Joe B.
PachecoAlice
Shearer

CommissionerCommissioner

NOTICE:You have twenty (20)
days after the date of a final order to file a Request for Reconsideration with
the Commission.If you do not file a
Request for Reconsideration with the Commission, you have thirty (30) days
after the date of a final order to file a.) a Petition for Judicial Review in
the Supreme Court, or b.) a Petition for Judicial Review by trial de novo in
district court.(Utah Administrative Rule
R861-1A-5(P) and Utah Code Ann. §§59-1-601(1),63-46b-13(1),63-46b-14(3)(a).)